October 30, 1998
CRS Report for Congress
Received through the CRS Web
Part I: Pre-Constitutional Convention Materials
American Law Division
This is a collection of selected background materials pertinent to the issue of what
constitutes impeachable misconduct for purposes of Article II, section 4 of the United
States Constitution quoted below. It includes excerpts from Blackstone, Wooddeson,
and the impeachment clauses in pre-Constitutional Convention state constitutions. It is
the first of six segments that together with footnotes comprise, Impeachment Grounds:
A Collection of Selected Materials, CRS Report 98-882.
The President, Vice President and all Civil Officers of the United States, shall be
removed from Office on impeachment for, and Conviction of, Treason, Bribery, or other
high Crimes and Misdemeanors. U.S.Const. Art. II, §4
“The high court of parliament; which is the supreme court in the kingdom, not
only for the making, but also for the execution, of laws; by the trial of great and
enormous offenders, whether lords or commoners, in the method of parliamentary
impeachment. As for acts of parliament to attaint particular persons of treason or
felony, or to inflict pains and penalties, beyond or contrary to the common law, to
serve a special purpose, I speak not of them; being to all intents and purposes new
laws, made pro re nata, and by no means an execution of such as are already in
being. But an impeachment before the lords of the commons of Great Britain, in
parliament, is a prosecution of the already known and established law, and has been
frequently put in practice; being a present to the most high and supreme court of
criminal jurisdiction by the most solemn grand inquest of the whole kingdom. A
commoner cannot however be impeached before the lords for any capital offence,
but only for high misdemeanor; a peer may be impeached for any crime.” IV
BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 256 (1769)
Congressional Research Service ˜ The Library of Congress
Although the phrase had apparently become fairly common in impeachment cases
by then, Blackstone makes no reference to the phrase “high crimes and misdemeanors.”
He does, nevertheless, provide a detailed outline of the classification of crimes in his day:
“We are now arrived at the fourth and last branch of these commentaries; which
treats of public wrongs, or crimes and misdemeanor. For we may remember that, in
the beginning of the preceding volume, wrongs were divided into two sorts or
species; the one private, and the other public. Private wrongs, which are frequently
termed civil injuries, were the subject of that entire book: we are now therefore,
lastly, to proceed to the consideration of public wrongs, or crimes and
misdemeanors.” ID. at 1.
* * *
“A crime, or misdemeanor, is an act committed, or omitted, in violation of a
public law, either forbidding or commanding it. This general definition
comprehends both crimes and misdemeanors; which, properly speaking, are mere
synonymous terms: though, in common usage, the word, `crimes,’ is made to denote
such offences as are of a deeper and more atrocious dye; while smaller faults, and
omissions of less consequence, are comprised under the gentler name of
“The distinction of public wrongs from private, of crimes and misdemeanor
from civil injuries, seems principally to consist in this: that private wrongs, or civil
injuries, are an infringement or privation of the civil rights which belong to
individuals, considered merely as individuals; public wrongs, or crimes and
misdemeanors, are a breach and violation of the public rights and duties, due to the
whole community, considered as a community, in its social aggregate capacity. . . .
[T]reason, murder, and robbery are properly ranked among crimes; since besides the
injury done to individuals, they strike at the very being of society; which cannot
possibly subsist, where actions of this sort are suffered to escape with impunity.
“In all cases the crimes include an injury: every public offence is also a private
wrong, and somewhat more; it affects the individual, and it likewise affects the
community,” ID. at 5.
* * *
“The third general division of crimes [after offenses against God and offenses
against the law of nations] consists of such, as more especially affect the supreme
executive power, or the king and his government; which amount either to a total
renunciation of that allegiance, or at the least to a criminal neglect of that duty,
which is due from every subject to his sovereign. . . . Every offence therefore more
immediately affecting the royal person, his crown, or dignity, is in some degree a
breach of this duty of allegiance, whether natural and innate, or local and acquired
by residence: and these may be distinguished into four kinds; 1. Treason. 2. Felonies
injurious to the king’s prerogative. 3. Praemunire. 4. Other misprisions and
“Treason . . . imports a betraying, treachery, or breach of faith. It therefore
happens only between allies, faith the mirror: for treason is indeed a general
appellation, made use of by the law, to denote not only offences against the king and
government, but also that accumulation of guilt which arises whenever a superior
reposes a confidence in a subject or inferior, between whom and himself there
subsists a natural, a civil, or even a spiritual relation; and the inferior so abuses that
confidence, so forgets the obligations of duty, subjection, and allegiance, as to
destroy the life of any such his superior or lord,” ID. at 74-5.
* * *
“Felony, in the general acceptation of our English law, comprizes every species
of crime, which occasioned at common law the forfeiture of lands or goods. This
most frequently happens in those crimes, for which a capital punishment either is or
was liable to be inflicted . . . Treason itself . . . was antiently comprised under the
name of felony,” ID. at 94.
* * *
“The fourth species of offences, more immediately against the king and
government, are intitled misprisions and contempts.
“Misprisions (a term derived from the old French, mespris. a neglect or
contempt) are, in the acceptation of our law, generally understood to be all such high
offences as are under the degree of capital, but nearly bordering thereon: and it is
said, that a misprision is contained in every treason and felony whatsoever. . . .
Misprisions are generally divided into two sorts; negative, which consist in the
concealment of something which ought to be revealed; and positive, which consist
in the commission of something which ought not to be done.
“Of the first, or negative kind, is what is called misprision of treason; consisting
in the bare knowledge and concealment of treason, without any degree of assent
thereto,” ID. at 119-20.
* * *
“Misprisions, which are merely positive, are generally denominated contempts
or high misdemeanors; of which
“The first and principal is the mal-administration of such high offices, as are
in public trust and employment. This is usually punished by the method of
parliamentary impeachment: wherein such penalties, short of death, are inflicted, as
to the wisdom of the house of peers shall seem proper; consisting usually of
banishment, imprisonment, fines, or perpetual disability,” ID. at 121.
* * *
“Lastly, to endeavor to dissuade a witness from giving evidence; to disclose an
examination before the privy council; or, to advise a prisoner to stand mute; (all of
which are impediments to justice) are high misprisions, and contempts of the king’s
courts, and punishable by fine and imprisonment. . . .
“The order of our distribution will next lead us to take into consideration such
crimes and misdemeanors as more especially affect the common-wealth, or public
polity of the kingdom. . . .
“The crimes and misdemeanors, that more especially affect the commonwealth, may be divided into five species; viz. offences against public justice, against
the public peace, against public trade, against public health, and against the public
police or oeconomy: of each of which we will take a cursory view in their order.
“First then, of the offences against public justice: some of which are felonious,
whose punishment may extend to death; others only misdemeanors. I shall begin
with those that are most penal, and descend gradually to such as are of less
malignity,” ID. at 126-28.
* * *
“16. The next offence against public justice is when the suit is past its
commencement, and come to trial. And that is the crime of wilful and corrupt
perjury; which is defined by sir Edward Coke, to be a crime committed when a
lawful oath is administered, in some judicial proceeding, to a person who swears
wilfully, absolutely, and falsely, in a matter material to the issue or point in question.
. . . Subornation of perjury is the offence of procuring another to take such a false
oath, as constitutes perjury in the principal. The punishment of perjury and
subornation, at common law, has been various. It was antiently death; afterwards
banishment, or cutting out the tongue; and then forfeiture of goods; and now it is fine
and imprisonment, and never more to be capable of bearing testimony. . . .
“17. Bribery is the next species of offence against public justice; which is when
a judge, or other person concerned in the administration of justice, takes any undue
reward to influence his behavior in his office,” ID. at 136-39.
“In the last lecture two distinct modes of criminal prosecution were reserved for
future inquiry, namely, proceedings on impeachments, and penal acts of parliament
occasionally passed against particular offenders: the former is designed to occupy
our present consideration.
“It is certain that magistrates and officers intrusted with the administration of
public affairs may abuse their delegated powers to the extensive detriment of the
community, and at the same time in a manner not properly cognizable before the
ordinary tribunals. The influence of such delinquents, and the nature of such
offences, may not unsuitably engage the authority of the highest court, and the
wisdom of the sagest assembly. The commons, therefore, as the grand inquest of the
nation, become suitors for penal justice; and they cannot consistently either with
their own dignity, or with safety to the accused, sue elsewhere but to those who share
with them in the legislature.
“On this policy is founded the origin of impeachments: which began soon after
the constitution assumed its present form. In the year 1321. . .
“All the king’s subjects are impeachable in parliament, but with this distinction,
that a peer may be so accused before his peers of any crime, a commoner (tho
perhaps it was formerly otherwise) can now be charged with misdemeanors only, not
with any capital offence. For when Fitzharris, in the year 1681, was impeached of
high treason, the lords remitted the prosecution to the inferior court, tho it greatly
exasperated the accusers. Such kind of misdeeds however as peculiarly injure the
commonwealth by the abuse of high offices of trust, are the most proper and have
been the most usual grounds for this kind of prosecution. Thus, if a lord chancellor
be guilty of bribery, or of acting grossly contrary to the duty of his office, if the
judges mislead their sovereign by unconstitutional opinions, if any other magistrate
attempt to subvert the fundamental laws, or introduce arbitrary power, these have
been deemed cases adapted to parliamentary inquiry and decision. So where a lord
chancellor has been thought to have put the seal to an ignominious treaty, a lord
admiral to neglect the safeguard of the sea, an ambassador to betray his trust, a privy
counselor to propound or support pernicious and dishonorable measures, or a
confidential advisor of his sovereign to obtain exorbitant grants or incompatible
employments, these imputations have properly occasioned impeachments; because
it is apparent how little the ordinary tribunals are calculated to take cognizance of
such offences, or to investigate and reform the general polity of the state. . . .” 2
WOODDESON’S LECTURES, Lecture 40, 596-97, 601 (1792 ed.).
Pre-Constitutional Convention State Constitutions
Nine of the states had impeachment provisions in their state constitutions when the
Constitutional Convention met in Philadelphia in 1787:
“Every officer of state, whether judicial or executive, shall be liable to be impeached
by the general assembly, either when in office, or after his resignation or removal for maladministration: All impeachments shall be before the president [governor] or vicepresident and council [upper house of the legislature, who shall hear and determine the
same,” Pa.Const. §22 (1776).
“That the Governor, and other officers, offending against the State, by violating any
part of this Constitution, maladministration, or corruption, may be prosecuted, on the
impeachment of the General Assembly, or presentment to the grand jury of any court of
supreme jurisdiction in this State,” N.C.Const. Art.23 (1776).
“The president, when he is out of office, and within eighteen months after, and all
others offending against the State, either by maladministration, corruption, or other
means, by which the safety of the commonwealth may be endangered, within eighteen
months after the offence was committed, shall be impeachable by the house of assembly
before the legislative council . . .” Del.Const. Art.23 (1776).
“The Governor, when he is out of office, and other, offending against the State,
either by mal-administration, corruption, or other means, by which the safety of the State
may be endangered, shall be impeachable by the House of Delegates. . .” Va.Const.
“That the judges of the supreme court shall continue in office for seven years, the
judges of the inferior courts of common pleas in the several counties, justices of the
peace, clerks of the supreme court, clerks of the inferior courts of common pleas and
quarter sessions, the attorney-general and provincial secretary shall continue in office for
five years; and the provincial treasurer shall continue in office for one year; and that they
shall be severally appointed by the council and assembly in manner aforesaid, and
commissioned by the governor, or, in his absence, by the vice president of the council;
provided always, that the said officers severally shall be capable of being re-appointed at
the end of the terms severally before limited; and that any of the said officers shall be
liable to be dismissed, when adjudged guilty of misbehavior by the council, on an
impeachment of the assembly,” N.J.Const. XII (1776).
“That the power of impeaching all officers of the State, for mal and corrupt conduct
in their respective offices, be vested in the representatives of the people of the assembly
. . .” N.Y.Const. Art. XXXIII (1777).
“. . . [A] court shall be instituted for the trial of impeachments . . . to consist of the
president of the senate, for the time being, and the senators, chancellor, and judges of the
supreme court, or the major part of them. . .” N.Y.Const. Art. XXXII (1777).
“Every officer of State, whether judicial or executive, shall be liable to be impeached
by the General Assembly, either when in office, or after his resignation, or removal for
mal-administration. All impeachments shall be before the Governor or Lieutenant
Governor and Council, who shall hear and determine the same,” Vt.Const. Ch.2, §20
“The house of representatives shall be the grand inquest of this commonwealth; and
all impeachments made by them, shall be heard and tried by the senate,” Mass.Const. Pt.2,
Ch.1, §3, Art.VI (1780).
“The senate shall be a court with full authority to hear and determine all
impeachments made by the house of representatives, against any officer or officers of the
commonwealth, for misconduct and mal-administration in their offices. . .” Mass.Const.
Pt.2, Ch.1, §2. Art.VIII (1780).
“The house of representatives shall be the grand inquest of the state; and all
impeachments made by them, shall be heard and tried by the senate,” N.H.Const. Pt.2,
“The senate shall be a court, with full power and authority to hear, try, and
determine, all impeachments made by the house of representatives against any officer or
officers of the state, for bribery, corruption, malpractice or maladministration in office...”
N.H.Const. Pt.2, Art. 38 (1784)
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